6 Consultation and environmental assessment
63. In this Part we examine how well the environmental
aspects of the project have been consulted upon, and the robustness
of the environmental assessment process that should underpin that
exercise.
Consultation and public engagement
64. The Department of Transport told us that the
Environmental Statement had been "developed in an
open and transparent way involving a level of engagement and consultation
that goes beyond what is legally required".[146]
HS2 Ltd told us that "the consultation has had teeth",[147]
and highlighted two major adjustments to the route as a result
of the consultation on the 2013 Draft Environmental Statement.[148]
65. However, HS2 Action Alliance described the decisions
taken by HS2 Ltd as "inscrutable" and believed that
the Environmental Statement had not explained the process
by which alternatives were assessed and choices made.[149]
The Woodland Trust complained that HS2 Ltd had not shared its
calculation methodology and had not provided sufficient detail
on alternative options.[150]
CPRE, similarly, told us that HS2 Ltd had failed to disclose information
on why potential alternatives had been dismissed.[151]
We were told that councils had not been consulted on flooding
issues, but the Environmental Agency said that councils would
have an opportunity to participate in consultations at a later
stage.[152]
66. Local authorities and others noted an absence
of mechanisms for appealing against HS2 Ltd's decisions or for
ensuring that stakeholders' environmental concerns were taken
into consideration. Camden Council, before the Higgins report
was published in March 2014, complained that:
There does not appear to be any clear system
or process in place which a local authority, or other parties
such as residents and businesses along the route, can utilise
to guide environmental considerations, other than the petitioning
process which is a costly and cumbersome mechanism which should
not be relied upon as a means of ensuring there is no deterioration
to the environmental quality as a result of HS2. ... Better processes
and systems should have been implemented at an earlier stage of
the project at which interested parties could and should have
had an input into the original design and methodologies utilised.
Such a collaborative approach could have avoided the production
of the inadequate proposals we now see.[153]
HS2 Ltd had a different perspective. They told us
that:
The Hybrid Bill process will be one avenue of
resolving those disputes as petitioners come forward. [We] would
expect a lot of that sort of business to be taken care of through
that Parliamentary process. In construction we have provision
for a Complaints Commissioner and, ultimately, if there is no
resolution even with the Complaints Commissioner, it would go
back to the Secretary of State. ... [There are] other mechanisms.
If you have a consent regime, if we have water quality consents,
water discharges and ... noise consents, if we are in breach of
those consents, then the law comes into effect.[154]
67. Several of our witnesses told us that the Environmental
Statement had not assessed or facilitated consultation on
the cumulative impacts of HS2. The HS2 Ecology Technical Group
pointed to "no cross referencing of impacts" in the
Environmental Statement with "other sections, such
as Agriculture, Forestry and Soils, Land Quality, Water Resources
or Waste and Material Resources".[155]
The National Trust made a similar point.[156]
Camden Borough Council told us, before the Higgins report was
published, that:
The layout of the Environmental Statement
is such that an individual resident is not able to determine the
in-combination impacts of the project at their property. For example,
the noise, air quality and transport impacts have been reported
separately and there is no spatial presentation of the information
or basic description of the environmental in-combination impacts
at any given location. The effect of this is that neither we as
a local authority, or other interested parties, are in a position
to understand the scale of impact on the environment, nor assess
whether the mitigation proposals are adequate at any given location.[157]
Sustainable development
68. Throughout this Parliament we have examined issues
against the requirements of sustainable development and how well
sustainability—balancing economic, social and environmental
considerations together—is being taken forward in the UK
and internationally. In the case of HS2, this approach does not
seem to have been to the fore. CPRE identified a "lack of
integration between HS2 and wider policy; the National Planning
Policy Framework talks about seeking environmental goals simultaneously
and jointly with economic and social ones".[158]
69. The Environmental Memorandum (part of
the Environmental Statement set of documents) effectively
puts a limit on environmental measures by requiring them to be
'practicable' and 'reasonable':
… the nominated undertaker … with the
support of the statutory environmental bodies, agree to the following
environmental aims for the design and construction stage of Phase
One of HS2:
to design and construct Phase One of HS2 such
that significant environmental effects are eliminated, controlled
or reduced where reasonably practicable; …
to address sustainability principles in on-going
design development, taking opportunities for environmental enhancement
and compensation where practicable and reasonable;
and in doing so, recognise that the nominated
undertaker will take a responsible approach to balancing the achievement
of environmental principles with the overall objectives of Phase
One of HS2.[159]
Stop HS2 highlighted that the Environmental Minimum
Requirements (also part of the Environmental Statement
document set) would impose requirements on the HS2 operator to
reduce adverse environmental effects provided that these did not
add unreasonable cost or delay to construction or operation. They
described this as "hardly reassuring, especially given that
... there is currently a political imperative to control and reduce
costs of building HS2, and the obvious areas which give the only
real leeway for cost-cutting are compensation and mitigation".[160]
HS2 Ltd noted that it would be up to Parliament to determine,
through the Hybrid Bill Select Committee's consideration of petitions,
what was 'reasonable and practicable' for particular mitigation
and compensation measures.[161]
70. Robert Goodwill MP told us that "by planning
this project sensibly we have sought to reduce adverse environment
effects as far as possible",[162]
but he appeared in his evidence to see the environmental, social
and economic aspects of the project as distinct, rather than matters
to be considered and optimised together:
I do not think we need to make any excuses for
building a high speed line and building it as straight as possible,
and then ensuring that we minimise the environmental impact. …
It is important that you separate the biodiversity environmental
type of issues from the issues of people who live near the line
and do not want to look at it. They are two separate things.[163]
That disconnected approach is reflected in how the
issue of HS2 trains potentially operating at slower speeds has
been addressed by HS2 Ltd in terms of economic rather than environmental
or emissions considerations (paragraph 14). And as we have also
discussed, the design of biodiversity offsetting measures has
overlooked well-being considerations (paragraph 44).
Environmental assessment
71. In this report we have identified a number of
areas where concerns have been raised about the way that the HS2
project has identified and dealt with potential environmental
impacts. In a major project, such concerns are meant to be addressed
through a framework of environmental assessments, as required
under EU directives.
72. There are two main processes: a Strategic Environmental
Assessment (SEA)[164]
and an Environmental Impact Assessment (EIA).[165]
An SEA directive applies to certain 'public plans and programmes',
including some transport projects, and requires that the Government
accounts for the way in which the environmental aspects of the
proposal are considered when it is adopted. It can potentially
influence the choice of 'strategic alternatives'. An EIA, on the
other hand, typically coming after an SEA, should identify the
environmental impact of a particular project, but would not be
used to make strategic choices or choose between strategic alternatives.[166]
73. An SEA requires the monitoring of significant
environmental effects and implementation plans in order to identify
unforeseen issues and implement appropriate remedies.[167]
The EIA Directive does not require such monitoring,[168]
although this can be imposed through planning or licensing conditions
introduced through the planning consent process. Both SEA and
EIA directives require there to be public consultations, and for
the results to be taken into account in the development of the
proposals.
74. Because HS2 is a major project that potentially
affects individuals and businesses along its route, the Government
has chosen to implement it through a hybrid bill, leaving Parliament
as the 'relevant authority' to give planning permission through
the passage of the Bill. Clause 19 of the HS2 Hybrid Bill provides
that "Planning permission is deemed to be granted under Part
3 of the Town and Country Planning Act 1990 for the carrying out
of development authorised by this Act."[169]
75. The EIA Directive exempts such Parliamentary
decision-making processes from the Directive's requirements on
the assumption that the legislative process already fulfils the
public consultation requirements specified by the Aarhus Convention
on public participation in decision-making in environmental matters[170]
through the involvement of elected representatives.[171]
The House's private business Standing Order 27A requires a hybrid
bill to meet the requirements of the EIA Directive. The Standing
Order requires that for private bills an Environmental Statement
is produced and deposited when as the bill is introduced.[172]
They also effectively require that Environmental Statements have
to comply with the obligation in the EIA Directive for the public
to be consulted on a Statement, and the House agreed a revised
Standing Order (SO 224A)[173]
in June 2013 to make that requirement explicit.
76. The HS2 Environmental Statement set out
"a description of the scheme and how it was developed; the
alternatives that were considered; assessment of the likely adverse
and beneficial environmental effects of the scheme; and proposed
mitigation measures to manage or reduce likely significant adverse
effects".[174]
Accordingly, HS2 Ltd told us, it reflected "the information
that would have to be brought forward through an EIA process".[175]
This followed an Appraisal of Sustainability in 2011, which
HS2 Ltd told us "looked at a large number of route options"
and "took cognisance of the SEA Directive and the sort of
things that you would see through SEA".[176]
The purpose of the Environmental Statement is to:
... provide Members of Parliament with information
on all the significant environmental effects likely to result
from HS2 Phase One so that they can be taken into account before
Parliament decides whether or not to grant the powers to build
the railway.[177]
The Draft Environmental Statement,
consulted on between May-July 2013, noted that:
Consultation on the Draft Environmental
Statement is not a statutory requirement, but HS2 Ltd recognises
the importance of ensuring widespread engagement on the scheme
and wishes to offer everybody with an interest the opportunity
to:
- Understand what the likely significant environmental
effects would be and what mitigation is proposed; and
- Comment on the assessment undertaken to date
and the conclusions reached so far.
This consultation may identify issues that result
in changes being made to the design of the scheme or the proposals
to mitigate significant adverse effects. These changes will be
included in the Environmental Statement to be submitted
to Parliament.[178]
Subsequently, on the Draft Environmental
Statement, the Department of Transport concluded in November
2013 that:
For engineering, environmental or cost reasons
it has not been possible to take on board all comments raised.
However, the consultation process provided a robust analysis of
the content of the draft Environmental Statement and draft
[Code of Construction Practice] and helped to confirm findings
and identify areas which required further justification or information.
Responses received have influenced the drafting of the Environmental
Statement and led in part to changes to the Environmental
Statement and to the design of the Proposed Scheme. The Environmental
Statement now reflects the results of the analysis of consultation
responses. Where a change would be of proven benefit to local
communities, the environment and/or the Proposed Scheme these
have, where reasonably practicable, been incorporated.[179]
Peter Miller of HS2 Ltd described those adjustment
for us (paragraph 64).
77. The November 2013 final HS2 Environmental
Statement, also published for consultation, stated that "HS2
Ltd's aim has been to avoid adverse environmental effects, where
reasonably practicable", and to mitigate or compensate for
adverse effects where they cannot be avoided.[180]
The Department of Transport told us that "[we] firmly believe
that we have produced a best practice Environmental Statement
based on national and international best practice that fully complies
with all relevant national and EU law".[181]
The Environmental Statement, it went on, was "developed
in an open and transparent way involving a level of engagement
and consultation that goes beyond what is legally required".[182]
It said that "the planning permission provided by the Bill
is not valid if the environmental effects of the railway exceed
those set out in the Environmental Statement."[183]
78. There have been legal challenges to the process,
however, arguing that as a scheme of strategic national importance
its environmental impact assessment should have been guided by
the SEA directive. The Supreme Court ruled that a January 2012
Appraisal of Sustainability, consulted on alongside a High
Speed Strategy in February 2011, would not have complied with
the SEA Directive because it did not consider 'reasonable alternatives'
and because it covered only Phase 1 of HS2 rather than the two
phases covered by the Strategy. However, the Court rejected
the legal challenges on the grounds that an SEA was not required.
The Government's July 2013 summary of the Court judgments noted
that "the Government has explained clearly at each stage
of the project why there is no alternative to HS2 which meets
strategic objectives and offers the same scale of benefits."[184]
79. The Court noted that the subsequent Decisions
and Next Steps report in January 2012 was not a plan required
by 'legislative, regulatory or administrative provision' under
the SEA Directive, and which in any case could not set the framework
for Parliament (as the competent authority for the Hybrid Bill)
because Parliament was sovereign and not able to be influenced
by the Decisions and Next Steps report. The Court concluded
that:
The [Decisions and Next Steps report]
would have no legal influence on Parliament, which was not obliged
to comply with it or even to have regard to it in reaching its
decision. Nor was it appropriate or possible for the court to
assess the degree of influence the [Decisions and Next Steps
report] was likely to have as a matter of fact on Parliament's
decision-making process.
Parliament is constitutionally sovereign and
free to accept or reject statements of Government policy as it
sees fit, and the court should not seek to second guess what Parliament
will do.[185]
80. The Court saw the Decisions and Next Steps
report as "a very elaborate description of the HS2 project,
including the thinking behind it and the Government's reasons
for rejecting alternatives",[186]
but concluded that it did not constrain the decision-making process
of the responsible authority—that is Parliament:
The very concept of a framework, rules, criteria
or policy, which guide the outcome of an application for development
consent, as a plan which requires SEA even before development
project EIA, presupposes that the plan will have an effect on
the approach which has to be considered at the development consent
stage, and that that effect will be more than merely persuasive
by its quality and detail, but guiding and telling because of
its stated role in the hierarchy of relevant considerations. That
simply is not the case here.
Until Parliament has reached its decision, the
merits of all aspects of the HS2 project, on economic, environmental
and other grounds, remain open to debate.[187]
There had been similar issues on the Crossrail project;
the most recent hybrid bill before HS2. The Crossrail Hybrid Bill
Select Committee noted in October 2007 that:
… two issues have arisen before us in the
context of environmental assessment concerning either: the alleged
inadequacy generally of the environmental assessment process for
the Bill and the Environmental Statements produced for Crossrail,
and the failure to consider alternatives. … We have been
frequently assured by Counsel to the Promoter that what has been
produced in the Environmental Statement meets the legal requirements
of providing an outline of the main alternatives studied by the
developer and an indication of the main reasons for this choice,
taking into account the environmental effects. We understand that
there was no requirement to set out full information on alternatives.
…
The Promoter also told us that the environmental
assessment process adopted for the Bill complies with the Environmental
Assessments Directive and we see no reason to dispute their conclusions.[188]
HYBRID BILL SELECT COMMITTEE
81. As noted above, in its ruling the Supreme Court
saw all aspect of HS2 open to debate until Parliament has reached
its decision (paragraph 80). There is, it seems to us, a clear
expectation that Parliament will ensure that the HS2 Hybrid Bill
process delivers the requirements of the EIA Directive. It is
clear that the Environmental Statement and EIA process
is far from complete. There are still gaps to be filled, including
an environmental survey of the 40% of the route still not covered
(paragraph 20) and of the ancient woodlands affected (paragraph
20), as well as details of how environmental impacts will be mitigated,
compensated or offset (paragraph 23) and a full assessment of
the cumulative impacts of different environmental and community
factors (paragraph 67), including those likely to occur with Phase
2,
82. Standing Order 27A allows those affected by a
proposal to petition against specific elements of a hybrid bill,
and SO 224A effectively requires 'supplementary environmental
information' also to be consulted on.[189]
The Minister foresaw a challenge in that process in distinguishing
between "vexatious [petitions] trying to gum up the process"
and those "that would have very real environmental benefits".[190]
83. Such petitioning reflects the normal planning
system, where those affected by a planning application can object
to the planning authority. In a normal planning process, that
'competent authority' is also able to request further environmental
information until it is satisfied that it has the necessary material
to be able to make a decision. In the case of HS2, Parliament,
as the competent authority, had no role in the earlier Appraisal
of Sustainability and Decisions and Next Steps processes
that preceded the Hybrid Bill, and therefore had no formal engagement
in the process that led up to the choice of preferred route.
84. In the absence of a formal SEA process for
HS2, it is incumbent on the House to keep the scope of the continuing
environmental assessment process sufficiently broad, within the
'principles' of the Hybrid Bill, to allow full consideration of
the environmental impacts of options still available within a
project described in the Hybrid Bill as "a high speed railway
between London and the West Midlands". The House will have
to ensure that HS2 Ltd does not rely on its 'practicable and reasonable'
caveat (paragraph 69) to readily dismiss essential environmental
protections.
85. The House's instructions in July 2005 to the
Hybrid Select Committee on Crossrail specified the 'principles'
of the Bill in terms of only the terminals and particular intermediate
stations identified in that Bill, and not other stations or the
Crossrail routes.[191]
Those instructions also tasked the Crossrail Select Committee
to:
… without comment, report to the
House for its consideration any issue relating to the environmental
impact of the railway transport system for which the Bill
provides that is raised in a Petition against the Bill, but which
the Select Committee is prevented from considering by the practice
of the House …[emphasis added][192]
86. It is important that if HS2 proceeds, the
House is able to demonstrate that it has at least fully followed
the purposes and processes, to address environmental risks and
to prevent or mitigate them, that would be expected of any other
development of this scale. The Government should therefore
couch its intended instructions to the Hybrid Bill Select Committee
accordingly. It is vital that, when the HS2 Hybrid Bill is given
its Second Reading and referred to the Select Committee to consider
petitions, the House's instructions to it:
(i) do not overly constrain the 'principles' of
the Bill approved at Second Reading. The motion should list only
the key fixed features of the project such as terminals in Birmingham
and London. This would allow the Select Committee to request information
on measures that could avoid, reduce or remedy environmental damage
(an EIA process) of potential modifications to the route and its
infrastructure and consequential environmental protections that
might result, for example, from the trains being required to operate
at marginally slower speeds that currently planned (paragraph
14).
(ii) require it to consider and report on the
environmental impacts of the project. Unless the Government or
others in the House do so, Members of our Committee intend to
table a motion requiring the select committee "to comment
and report to the House for its consideration any issue relating
to the environmental impact of the railway transport system for
which the Bill provides that is raised in a Petition against the
Bill, including whether any reasonable or practicable environmental
protections and mitigations are not adopted". As modifications
are subsequently introduced, as a result for example of the Higgins
report or further environmental surveying (paragraph 20), additional
instructions to the Select Committee to deal with these should
be couched in similar terms.
146 Department for Transport (HS2 028), para 2.1 Back
147
Q 127 Back
148
Q109 Back
149
HS2 Action Alliance, (HS2 045), para 2.7 Back
150
Q42 [Mr Barnes] Back
151
Q43 [Mr Smyth] Back
152
Buckinghamshire County Council (HS2 024), para 6.1.2; Q92 Back
153
The London Borough of Camden (HS2 035), para 4.1 Back
154
Q129 Back
155
HS2 Ecology Technical Group (HS2 027), para 10.3. Back
156
National Trust memo( HS2 029), paras 2.1, 3.1-3.4 Back
157
The London Borough of Camden (HS2 035), para 3.5.2. Back
158
Q29 [Mr Smyth] Back
159
Department for Transport (HS2 028), para 3.10 Back
160
Stop HS2 (HS2 31), Executive Summary Back
161
Q168 Back
162
Q99 Back
163
Q121 Back
164
European Council and Parliament Directive 2001/42/EC Back
165
Council directive 85/337/EEC, now consolidated as European Council
and Parliament EU Directive 2011/92/EU. Back
166
Current proposed amendments to the EIA Directive, Article 5 (2)
(COM (2012) 628 final), include the requirement to assess reasonable
alternatives, similar to the requirement in the SEA Directive. Back
167
European Council and Parliament Directive 2001/42/EC, Article
10 Back
168
Current proposed amendments to the EIA Directive (Annex IV) include
the requirement for monitoring. COM (2012) 628. Back
169
High Speed Rail (London - West Midlands) Bill, Clause 19(1) [Bill
132-I (2013-14)] Back
170
Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters,
1998 Back
171
European Council and Parliament EU Directive 2011/92/EU, Article
1(4) Back
172
Standing Order 27A, House of Commons, Standing Orders of the House of Commons-Private Business,
July 2005, HC 441 (2005-06) Back
173
House of Commons Votes and Proceedings, 26 June 2013, Item 9 Back
174
Department for Transport/HS2 Ltd, Draft Environmental Statement: Non-Technical Summary
(May 2013), Foreword Back
175
Q106 Back
176
Q102 (see also Qq111, 126) Back
177
Department for Transport/HS2 Ltd, Draft Environmental Statement: Non-Technical Summary
(May 2013), Foreword Back
178
Department for Transport/HS2 Ltd, Environmental Statement: Non-Technical Summary
(May 2013), Foreword Back
179
Department for Transport/HS2 Ltd, Draft Environmental Statement Consultation Summary (CT-008-000),
November 2013, p60 Back
180
Department for Transport/HS2 Ltd, Environmental Statement,
Non-technical summary (November 2013), p4. Back
181
Department for Transport (HS2 028), Executive Summary Back
182
ibid, para 2.1 Back
183
Department for Transport (HS2 028), para 3.1 Back
184
Department for Transport, HS2 Judicial Review Appeals - the appeals ruling explained,
July 2013; accessed 28 March 2014 Back
185
Supreme Court Judgment, 22 January 2014, paras 31, 56 Back
186
ibid, para 38 Back
187
Supreme Court Judgment, 22 January 2014, paras 96, 49 Back
188
Select Committee on the Crossrail Bill, First Special Report of
Session 2006-7, Crossrail Bill, HC 235-I, paras 239, 240 Back
189
Qq113-114 Back
190
Q100 Back
191
Select Committee on the Crossrail Bill, First Special Report of
Session 2006-7, Crossrail Bill, HC 235-I, p58 (which reproduced
entry from Votes and Proceedings for 19 July 2005, item 19) Back
192
ibid Back
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